GlobalTort : Commentary from lawyers and experts on mass torts, law, insurance and science

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The "tort reform" war cry drives me crazy. It's a meaningless set of words used - usually - in deceptive way to mask the imposition of damages caps. But the phrase sure excites the  uninformed, as illustrated by this post by Sarah Palin. Note  that Ms. Palin's post  cites as "authority" an ABA Journal article reporting that imposing liability caps reduces lawsuits. Duh - of course it does . But imposing caps on damages does not mean eliminating the "frivolous lawsuits" she says are targets. (In fact, few are frivolous - lawyers cannot afford to invest in bad claims) Instead, imposing damages caps simply makes many claims not worth suing about, and thus leaves the victims to suffer the financial loss and the pain. 

Damages caps are government intervention at its worst - protecting mistakes and shifting the value of the loss away from the doctor and the insurer, and onto the victim.  Damages caps are good for three groups  - actuaries who want certainty, insurers which want no risk, and investors in insurers who want the windfall profit created by damages capping statutes.  Damages caps are miserable and unfair to the hundreds of thousands of annual victims of medical malpractice. Sadly, the New England Journal of Medicine has studied the topic and finds that medical malpractice continues to hurt almost 18% of patients in some way. Go here for the prior post with links to the study itself, and summary information.

So, like many others, I'm glad to see Republican Senator Fred Thompson speak out and oppose the insurance industry's ceaseless cries for damages caps, which they like to call "tort reform." Fred's op-ed piece  is online  here at the Tennessean. Key excerpts are below:

"To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society. Conservatism is individual responsibility and accountability for damages caused, even unintentionally. It's about government closest to the people and equal justice with no special rules for anybody. It's also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the Constitution."

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"The legislature has made adjustments to our tort law from time to time. For example, in 2008 a law was passed requiring plaintiffs to get a written statement from a medical professional saying that the lawsuit had merit, thereby reducing medical-malpractice suits. This was reasonable and appropriate. However, never has the legislature imposed a dollar limit in cases where damages and negligence have already been proven."